Strengthening IHL protecting persons deprived of their liberty in relation to armed conflict

Detention takes a toll on detainees. Regardless of who is holding them and where they are held, detainees are highly vulnerable, as they depend on their captors for their basic needs. It is not just their physical health that is at stake, but their dignity as well. The ICRC is currently facilitating State-led work on strengthening IHL protecting persons deprived of their liberty by parties to armed conflict.

The need to strengthen IHL protection for persons deprived of their liberty

Detention is a common and expected occurrence in armed conflicts. However, treaty law on detention is much more limited when it comes to non-international armed conflict (NIAC) than international armed conflict (IAC). The four Geneva Conventions, which apply to IACs, contain more than 175 provisions on detention, but there is no comparable regime for NIACs. The ICRC has therefore identified four key areas in which IHL needs to be strengthened in this regard:

conditions of detention;

protection for especially vulnerable groups of detainees;

grounds and procedures for internment; and

transfers of detainees from one authority to another.

The 2012-2015 consultation process

Pursuant to Resolution 1 of the 31st International Conference, which was held in 2011, the ICRC conducted research and facilitated consultations with and among States and other relevant actors on how to address the identified gaps. This included four regional consultations of government experts in 2012 and 2013; two thematic consultations of government experts in 2014; one all-State meeting in 2015; and numerous informal bilateral and multilateral consultations. The consultations led to the adoption of Resolution 1 at the 32nd International Conference, which defines key parameters governing further work on this process.

Resolution 1 of the 32nd International Conference and its implementation

Resolution 1 from the 32nd International Conference recommended the production of one or more concrete, implementable, and non-legally binding outcomes to strengthen IHL protecting persons deprived of their liberty in relation to armed conflict, in particular in relation to NIAC. Thus, the objective was not to negotiate a new IHL treaty but to develop operationally relevant outcomes to assist parties to armed conflicts in their efforts to protect detainees. Before starting substantial work towards such outcomes, however, the resolution required States and the ICRC to determine modalities of further work. This work is to be State-led, collaborative and non-politicized. At the same time, the resolution invited the ICRC to facilitate the work of States and to contribute its humanitarian and legal expertise.

On 6-7 April 2017, the ICRC convened the first formal meeting of States to implement Resolution 1. In preparation of the meeting the ICRC had organized three informal preparatory consultations as well as numerous bilateral discussions and briefings in regional groups. The formal meeting was attended by over 90 States from all geographical regions.

Despite strong levels of State engagement, it was not possible to find agreement on modalities of work and a provisional work plan during the two-day meeting. Discussions lasted late into the evening in an attempt to identify areas of convergence among State positions, but agreement was not reached.

Following the Formal Meeting, the ICRC is reflecting on the best way to continue efforts to strengthen the protection of persons deprived of their liberty in relation to armed conflict. This will involve consultation with States.